ESMA on late transposition of AIFMD

ESMA has issued an opinion on practical arrangements in the event of late transposition of the AIFMD by member states.

Notification of marketing of EU AIFs when the host member state of the AIFM has not transposed the AIFMD

If the AIFMD has not been transposed in the home member state of the AIFM, the competent authority of the host member state of the AIFM (Article 32) or home member state of the AIFM (Article 31) may not refuse a valid notification under the AIFMD on the ground that the AIFMD has not yet been transposed in the host member state. This applies irrespective of whether the marketing is done using the freedom to provide services or by means of a branch.

Management passport

AIFMs established in the member state that has transposed the AIFMD should be able to manage an EU AIF via the management passport, both using the freedom to provide services or by means of a branch, in a member state where the AIFMD has not been transposed, provided the AIFM is authorised to manage that type of AIF in accordance with Article 33 (1) of the AIFMD. Any local restrictions on AIFMs that are not in accordance with the AIFMD will need to be disapplied.